Reported Decision : 127 A Crim R 331 New South Wales Court of Criminal Appeal CITATION : R v Goundar [2001] NSWCCA 198 FILE NUMBER(S) : CCA 60112 of 2001 HEARING DATE(S) : 14/05/01 JUDGMENT DATE : 14 May 2001 PARTIES : Regina Vikash Goundar JUDGMENT OF : Powell JA at 63; Wood CJ at CL at 1; Sully J at 62 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/3240 LOWER COURT JUDICIAL Sides DCJ OFFICER : COUNSEL : Crown: E. Wilkins Applicant: G.Thomas SOLICITORS : S.E. O'Connor CATCHWORDS : CRIMINAL LAW - appeal - appeal against sentence - aid and abet armed robbery - leniency of sentence - whether sufficient weight given to objective circumstances - whether reasonable proportionality between weight given to objective gravity of crime and subjective circumstances - error of law LEGISLATION CITED : Criminal Appeal Act 1912 s 5D DECISION : (1) Appeal allowed, sentence quashed.; (3) Sentence of two and a half years imprisonment imposed with a non-parole period of 12 months. IN THE COURT OF CRIMINAL APPEAL No. 60112 of 2001 POWELL JA WOOD CJ at CL SULLY J MONDAY 14 MAY 2001 REGINA v VIKASH GOUNDAR The respondent pleaded guilty to an indictment containing one count of aid and abet armed robbery. He was sentenced to 18 months imprisonment with a non-parole period of 7 months. The Director of Public Prosecutions appeals against the leniency of the sentence imposed on the grounds that (1) his Honour failed to give sufficient weight to the objective seriousness of the offence; (2) there was a lack of reasonable proportionality between the weight given to the objective gravity of the crime and the subjective features of the respondent. Held: (Appeal allowed): Ground 1: failure to give sufficient weight to the objective seriousness The respondent pleaded guilty as an aider and abettor to armed robbery and his objective criminality should therefore be considered in the context of that offence. The respondent provided considerable encouragement and assistance in the commission of the robbery and clearly contemplated the use of a machete. His Honour's conclusions as to the degree of objective criminality could not be supported by the evidence. A significant sentence of full time custody was required which carried an obvious element of general deterrence, by reason of the fact that the offence was committed in the early hours of the morning and where the victim was vulnerable due to his occupation. Webster (1999) NSWCCA 313; Doorey (2000) NSWCCA 456; Readman (1990) 47 A Crim R; Thwaites NSWCCA 16 October 1993; Henry (1999) 46 NSWLR 346 applied. Govinden [1999] NSWCCA 118 distinguished. Ground 2: Lack of reasonable proportionality between weight given to the objective gravity of crime and subjective features of respondent Although it was true that the respondent was a first offender and this was his first sentence of imprisonment, his subjective circumstances were not particularly remarkable. While prison is to be avoided for young persons, unless that course is necessary, the gravity of the crime must be kept steadfastly in mind, otherwise the protective aspect of the court's function will cease to operate. Pham (1991) 55 A Crim R 128; Mostronardi (2000) NSWCCA 12; Dodd (1991) 57 A Crim R 349; Blackman and Walters [2001] NSWCCA 121 applied. Orders: (1) Appeal allowed, sentence quashed. (3) Sentence of two and a half years imprisonment imposed with a non-parole period of 12 months. IN THE COURT OF CRIMINAL APPEAL No 60112/01 POWELL JA WOOD CJ at CL SULLY J MONDAY 14 MAY 2001 REGINA v VIKASH GOUNDAR JUDGMENT 1 WOOD CJ at CL: On 26 February 2001 the respondent pleaded guilty to an indictment containing one count of aid and abet armed robbery, an offence attracting the same penalty as that applicable for the substantive offence of armed robbery, namely imprisonment for 20 years. 2 It would appear that prior to this plea being offered and accepted, counsel for the respondent had written to the Director of Public Prosecutions inviting acceptance of a plea of accessory after the fact to armed robbery, an offence which it might be noted carries a lesser penalty, namely one of imprisonment for 14 years. 3 That offer was rejected and the matter was listed for trial upon an indictment charging the substantive offence. However, shortly before the matter was called on for hearing, counsel for the respondent indicated that a plea to the alternative aid and abet offence would be offered. The respondent was arraigned on that basis and entered a plea of guilty. 4 It was made plain, in the course of the debate on prior to sentence that the respondent was always regarded as a principal in the second degree, and that he could equally well have been charged with the substantive offence. 5 For the offence to which he pleaded guilty he was sentenced by his Honour Judge Sides QC to imprisonment for 18 months with a non-parole period of seven months, each to date from 7 August 2000. 6 The Director of Public Prosecutions now appeals against the leniency of that sentence pursuant to s 5D of the Criminal Appeal Act 1912. Facts 7 At about 2am on 7 August 2000 a console operator at the Volume Plus Service Station at Liverpool was held up by two offenders each of whom was wearing a balaclava and a bulky jacket. One of these men jumped the counter and held a machete to the face of the console operator. He demanded money from the till and from the victim's wallet. 8 The offenders got away with approximately $300 as well as some confectionary and cigarettes. Shortly afterwards the police observed the respondent and a co-offender, Sitan Mishra, standing beside a motor vehicle parked in a nearby street. A machete was found in a garbage bin adjacent to the vehicle. Inside the motor vehicle, which was owned by the respondent, police found cigarettes and confectionary from the service station as well as a jacket of the same kind as that worn by of the offenders. 9 When interviewed by police the respondent admitted that he had been party to the plan to rob the service station and that he knew that a machete was to be used. His role he said was to drive the co-offenders to and from the scene of the robbery. 10 He named his co-offenders as people whom he knew only as C2 and Candy. C2, who was in fact Mishra, similarly admitted to police his involvement in the robbery when interviewed. 11 At the time when he committed the offence to which he pleaded, the respondent was aged 18 years and four months. By the time he appeared for sentence he was aged 19 years. He had no prior convictions. 12 The co-offender Mishra was sentenced by his Honour Robison DCJ after pleading guilty to armed robbery to imprisonment for four years with a non-parole period of two years. He was aged 22 years at the time that he appeared for sentence and he had a minor criminal record for driving offences and for driving a conveyance without the consent of the owner for which he had received a bond. 13 He was sentenced on the basis that he had acted as a look-out who had waited outside the service station while the offence was committed. 14 The other co-offender, Kanderpan Sathiamoorthy, was sentenced by his Honour Goldring DCJ, in respect of the armed robbery, to five years imprisonment with a non-parole period of three years and four months, to commence at the expiry of an existing sentence. He was sentenced at the same time to a fixed term of six months for an unrelated offence of robbery, taking into account, on a Form 1, an offence of larceny which had been committed at the same time as the robbery. 15 He was also aged 22 years at the time he appeared for sentence and he had prior convictions for robbery, steal motor vehicle, stealing and robbery in company. He was on parole at the time of this offence and he was sentenced upon the basis that he had been one of the offenders who had entered the service station and threatened the attendant. 16 All three offenders were treated by the respective sentencing judges as having drug problems, a circumstance which may have helped to explain their criminality but which did not operate in mitigation of sentence. 17 In dealing with the respondent his Honour gave him the benefit of a discount of 20 per cent for the plea of guilty and for his contrition including that which had been demonstrated by his co-operation with the police in the interview with him. 18 The co-offender Sathiamoorthy was similarly given a discount of almost 20 per cent. The extent of the discount given to Mishra was not expressly identified nor was it otherwise discernible from the judgment, although Robison DCJ did make it clear that he had taken both his plea and his contrition into account. 19 Each of the co-offenders had been sentenced before the respondent and his Honour had available the reasons for the sentences which had been imposed. In dealing with the respondent on a basis which was markedly more lenient when compared with the sentences for the co-offenders, it appears that his Honour was influenced by two factors: (a) the conclusion which he reached that the respondent had performed a lesser role than the co-offenders in acting as a driver, and in waiting in the get-away car which had been parked some little distance from the target premises, and (b) the fact that he was younger than the two co-offenders . 20 In relation to the first of these two factors, it appears that there was some apprehension on the part of counsel, and on the part of his Honour, that the offer and acceptance of the plea to the alternative aid and abet count, meant inevitably that his criminality was of a lesser order than it would have been if he had pleaded to, or been found guilty of, the substantive offence even though the maximum penalty for the two offences was the same. Appeal 21 The sentence imposed, the Crown submits, was manifestly inadequate to the point of disclosing error in the sentencing exercise, having regard to the principles discussed in House (1936) 55 CLR 499 at 505. In addition specific error was said to arise in two respects. To those I will now turn. Objective Criminality Of The Respondent 22 The Crown submits his Honour erred, firstly, in failing to give sufficient weight to the objective seriousness of the offence committed by the respondent. 23 In my view this submission has been made good. The respondent was an aider and abbetor to the armed robbery and his objective criminality was to be considered in the context of that offence being the one to which he had pleaded guilty. 24 Although it was put that there was some implicit holding out by the Crown or a belief formed on the part of counsel for the respondent that, having regard to the manner in which the matter proceeded, he was to be considered as having a lesser role than would have been otherwise the case, the fact is, as has been accepted by counsel this morning, that there was no moderation or attenuation of the facts upon which his criminality was to be assessed. 25 On the contrary there was agreement that the full facts were placed before his Honour and that it was appropriate for him to sentence the respondent in the light of the offence before him, and in the light of a weighing of the objective criminality disclosed by those facts. The weighing of that objective criminality was properly a matter for his Honour, to be made upon the evidence, irrespective of any belief which may have been held by Counsel. 26 In my view, the objective criminality of the respondent was significant. Indeed, that was indicated by the finding of his Honour that the robbery may well not have taken place without his assistance, and by the further findings that he had been made aware in advance of what was to happen, and that a machete was being taken to the scene. 27 While it is true that the respondent did not personally offer any threat of violence, he clearly contemplated the use of the machete, or at least the threat of its use, in order to discourage any resistance to the robbery. 28 Despite the strenuous efforts by Mr Thomas this morning to minimise the strength of the admissions contained in the ERISP, on the basis of the respondent's youth, and upon the basis that he was not personally present at the premises as distinct from waiting nearby, the position remains that the respondent was a principal in the second degree who provided assistance in taking the co-offenders to the scene and who was available to drive them away from it. In these ways it seems to me he provided encouragement and assistance, which was of a considerable kind. 29 In all those circumstances I am of the view that his Honour's conclusion as to the degree of objective criminality attributed to the respondent was not one that was open on the evidence. Of particular significance in this regard was the assessment that Mishra's criminality had exceeded that of the respondent because he was "placed much closer to the scene and was in a position to more readily render active assistance to the principals". 30 In Breedon NSWCCA 3 December 1992 this Court considered the case of a similar offender who had been the driver of a motor vehicle and who had been charged with the same offence as the present respondent. That offender received the same sentence as the co-offender who had entered the various premises where the offences had been committed and had there threatened the victim with a weapon. 31 This Court approved the observation of the sentencing judge, when assessing the objective criminality of the offenders, as "being of the same quality" upon the basis that they had involved themselves "in a course of criminal conduct which could be described as a joint criminal enterprise". 32 This does not automatically mean that every participant in such an enterprise shares the same degree of objective criminality. The assessment does, however, begin or should begin with the proposition that each intended the crime and each set out to carry it into effect. 33 On some occasions cause will arise for differentiation between them, for example, if one offender stands out as the obvious ring-leader, or abuses some inside knowledge or connection with the premises to carry the crime into effect, or is the person who actually elects to carry out the threat of violence by using the weapon offensively to cause injury to the victim. 34 The present case, however, was not such a case since the robbery went according to plan, without violence beyond that contemplated and threatened by the presence of the weapon. 35 Consistent with authority in this Court, particularly recent authority such as Webster (1999) NSWCCA 313, Doorey (2000) NSWCCA 456 and Readman (1990) 47 A Crim R 181, a significant sentence of full-time custody was here required for each offender. Moreover, it should have been one that carried with it an obvious element of general deterrence by reason of the fact that the offence was committed in the early hours of the morning and the further fact that the victim was a person who was vulnerable due to his occupation as a console operator at a service station. 36 As Campbell J observed in Thwaites NSWCCA 6 October 1993: " The sentencing judge correctly emphasised the importance of general deterrence in such cases such as this. In doing so he complied with the often repeated direction of this Court that cases of armed robbery should in general be treated with severity and in particular garage attendants, taxi drivers and other people whose occupations place them in vulnerable situations should so far as can be done be protected by deterrent sentences." 37 The offence was one for which the guideline judgment in Henry (1999) 46 NSWLR 346 also had a relevance, subject to some qualification in relation to the strength of the Crown case. All of the features of that case for which the guideline was intended were here present. 38 There was no reference by his Honour to this decision and the inference arises, both from that circumstance and from the gulf between the guideline of four to five years imprisonment there proposed, and the sentence here imposed that his Honour erroneously considered it to have no relevance to the case of a aider and abettor. 39 Reference was made by the respondent to the decision of this Court in Govinden [1999] NSWCCA 118 where a non-custodial sentence for an offence of the kind before the Court was permitted to stand. 40 As the Court there recognised it is only in the most exceptional circumstances that persons who commit armed robberies, and I would add those who aid and abet those offences, should not receive sentences involving at least some period of full-time custody. 41 Govinden was treated as such a case but there are three clear reasons for the conclusion reached which make it distinguishable so far as the present case is concerned. The first relates to the principle of parity in that each of the co-offenders had there received non-custodial sentences. The second relates to the assessment that the respondent showed exceptional prospects of rehabilitation having regard to the fact that he had returned to school, had commenced university and otherwise had shown himself to be of impeccable good character while awaiting sentence. It was a true cross-roads case and for that reason the Court adopted the approach which it did. 42 The third distinguishing circumstance is that Dunford J, when delivering the leading judgment, made it clear that he regarded as having sentence as having been 'excessively lenient". His Honour went on to note that he considere3d it appropriate for the appeal to be dismissed in the exercise of the Court's discretion, since the only issue which had been fought on appeal was the question of full-time custody or not. 43 Subject to the next submission, to which I will now turn, I consider that an error of law has been here disclosed. Lack Of Reasonable Proportionality Between The Weight Given To The Objective Gravity Of The Crime And The Subjective Features Of The Respondent 44 It is true that the respondent's plea of guilty was timely, so far as it had been offered as soon as the alternative charge had become available, but so was that of each of the co-offenders. It is also true that the respondent was a first offender and that this was a first sentence of imprisonment for him. Otherwise his subjective circumstances do not seem to me to have been particularly remarkable. 45 After his parents had separated he had moved with his father from Fiji to New Zealand where he completed his education and entered the work force. He came to Australia when he was aged 18 years. Having done so he re-established contact with his mother from whom he had been separated, obtained work in an inner-city hotel, commenced to use drugs and then through a lack of other social relationships began to associate with the co-offenders who were older friends of his cousin. While in custody he had undertaken some courses and had remained drug free. 46 Upon the basis of this somewhat limited information his Honour assessed his prospects of rehabilitation as "above average". However, his co-offenders were similarly assessed as having favourable prospects of rehabilitation; Mishra more so than the third man as each had begun to address their drug problems while in custody. 47 The material before his Honour has been supplemented by an affidavit placed before us this morning which it is appropriate for the Court to take into account since I am of the view that it is necessary for the Court to undertake a re-sentencing exercise. That affidavit does not disclose very much that is new or that goes beyond the assessment which his Honour made. It does no more than disclose that since the respondent's release from custody on 6 March 2001, he has made numerous attempts to obtain employment and that from 7 May last he has undertaken employment on a building site. It also confirms that he has continued to abstain from drugs and from associating with the criminal element. We have been informed from the bar table this morning, additionally, that it is understood that the employment will remain available to the respondent even if he is returned to prison for a period of time. 48 While his Honour made reference to the decision of this Court in Pham (1991) 55 A Crim R 128, which did note that prison is to be avoided for young persons unless that course is necessary, it does not appear that his Honour attached sufficient significance to the caution, which was also given, that the gravity of the crime must be kept steadfastly in mind, otherwise the protective aspect of the criminal court's function will cease to operate. 49 As Lee CJ at CL observed: " deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes". 50 More recently this Court had occasion in Mastronardi (2000) NSWCCA 12 to observe that youth cannot be used as a cloak of convenience to enable an offender to shelter from accepting proper responsibility for his criminal behaviour 51 It was to be expected of his Honour that he would not allow the subjective features of the respondent to overwhelm the primary duty of giving appropriate weight to the objective features of the case. 52 For the reasons expressed in Dodd (1991) 57 A Crim R 349 at 354 the respondent was properly entitled to some consideration for his relative youth and immaturity, which also permitted him to call in aid the general sentencing principle that the interest of rehabilitation has greater weight in such a case than those of punishment and deterrence. 53 However, that principle is also to be understood in the light of the decisions of this Court noted above and also in Blackman and Walters [2001] NSWCCA 121 which emphasise that it has less relevance when the offender has reached adulthood, or where the offence involves serious criminality of the kind committed by adults - see Tran (1999) NSWCCA 109 and Nguyen NSWCCA 14 April 1994. 54 Having regard to the error which I consider that his Honour made in relation to his assessment of the objective criminality of the respondent, and having regard also to my conclusion that there was here a lack of proportionality between the respondent's criminality and the his objective circumstances, I am of the view that the Crown's appeal has been made good. 55 The sentence was, in my view, manifestly inadequate to the point where this Court should intervene, notwithstanding the discretion which attaches to Crown appeals against sentence, and notwithstanding the respect which must be extended to the sentencing exercise undertaken at first instance. 56 This Court will only intervene where material error of law or fact has been shown - see Allpass (1993) 72 A Crim R 561; Griffiths (1977) 137 CLR 293 and Dinsdale (2000) HCA 54. 57 The principle of double jeopardy also applies and on this account it is appropriate, where the Court intervenes, to impose a sentence which would be somewhat less than that which it considers should have been imposed at first instance. It must, however, remain consistent with the objective and subjective circumstances of the case, and also with the principle of parity so far as the co-offenders are concerned. 58 I would quash the sentence below and substitute a sentence of imprisonment for two and a half years to commence on 7 August 2000 and to expire on 6 February 2003. I would set a non-parole period of 12 months similarly to date from 7 August 2000 and to expire on 6 August 2001. The earliest date for release on that basis would be 7 August 2001. 59 In fixing that non-parole period I would preserve the proportionality between the head sentence and the non-parole period which his Honour thought appropriate, in order to reflect the special circumstances which were found to exist. 60 I would withdraw the observation about the earliest date. Having regard to the reduction in the sentence, the order which the Court should make is that he is to be released on parole at the end of the non-parole period, that is on 7 August 2001. 61 POWELL JA: I agree with the orders proposed by Wood CJ at CL and with his Honour's reasons for so doing. 62 SULLY J: So also do I agree. 63 POWELL JA: The orders of the Court are, thus, those that have been proposed by Wood CJ at CL and I would direct the respondent now to be taken into custody. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.